Deputy DA John Lewin projects an image of a preadolescent Kathie Durst onto the courtroom’s over-sized video monitors. From his seat in the witness box, James McCormack, Kathie’s 76 year old brother, turns to consider it.

LEWIN: DO YOU RECOGNIZE WHO’S IN THAT PHOTO?

MCCORMACK: YES.

LEWIN: AND WHO IS THAT?

MCCORMACK: THAT IS MY BABY SISTER KATHIE SITTING IN THE ROWBOAT THAT MY DAD BOUGHT AND THE MOTOR THAT I BOUGHT.

LEWIN: AND, ANY IDEA WHEN APPROXIMATELY THIS WOULD HAVE BEEN TAKEN?

MCCORMACK: UH, EARLY SIXTIES. I HAD GRADUATED FROM HIGH SCHOOL. EARNING SOME MONEY FROM MY NIGHT JOB… DAY JOB, WHATEVER YOU WANT TO CALL IT. EXTRA JOB. I APPLIED IT AS A GRADUATION GIFT TO AN OUTBOARD MOTOR.

The associations well up for McCormack: moments and places and people never to be encountered again. But they live on in his recollection — vivid with color, emotion, and the exact angle of the sunlight.

LEWIN: CAN YOU DESCRIBE, UM, GROWING UP, WHAT WAS YOUR RELATIONSHIP LIKE WITH KATHIE? WERE THE TWO OF YOU CLOSE?

MCCORMACK: I WOULD CONSIDER IT CLOSE, YES. SHE WAS THE BABY OF THE FAMILY. UM, MY DAD LOVED HER. FIRST TIME I EVER HELD AN INFANT WAS 1952, LATE JUNE. MY MOM HAD COME HOME FROM THE HOSPITAL AND I WAS OUT OF SCHOOL… I HAD TO BE OUT OF SCHOOL ‘CAUSE IT’S THE MIDDLE OF THE DAY… JUNE, LATE JUNE. SUN WAS OFF TO MY RIGHT SHOULDER, MOM COMES DOWN THE STOOP… WE CALLED THEM STOOPS… IN THE ST ALBANS HOUSE AND PUT KATHIE IN MY ARMS. AND I ADMITTEDLY STILL REMEMBER BEING LIKE IN A CLUMSY STATE AND I QUICKLY GAVE KATHIE BACK TO MY MOM. THAT WAS THE FIRST TIME I WAS ENGAGED WITH KATHIE AND THEREAFTER SHE WAS JUST THE BABY OF THE FAMILY.

*

In a very real sense, all testimony concerns the past and witness recollections of the details of that past. In their questioning of James McCormack, the People and the defense drilled down into very different types of memory, with divergent results.

Lewin, whose courtroom style tends to be crisp, was caring and empathic with McCormack, tapping into a rich emotional vein. Via respectful questions, Lewin conjured up Kathie as a little girl, the apple of her family’s eye, later maturing into a young woman, an A-student and the rising star of an ambitious Irish-American clan. Lewin simultaneously evoked a lost world, New York City’s outer boroughs of the ‘70s, where young women modeled for matrons at Long Island shopping centers like Roosevelt Field and the Manhasset Mall, and high school seniors spent their savings on outboard motors and then “went on the road” in second-hand Dodge vans. A young Robert Durst also appears in these reminiscences of simpler times.

MCCORMACK: I REMEMBER HAVING BOB COME OUT TO NEW HYDE PARK AND UH, FROM THERE HE AND A BUNCH OF MY BUDDIES AT THE TIME, WE WERE ALL BACHELORS, WENT FISHING DOWN ON THE SOUTH SHORE ON A PARTY BOAT… HEAD BOAT, THEY USED TO CALL THEM. AND BOB GOT VIOLENTLY SICK. HIM AND ANOTHER FRIEND SPENT MOST OF THAT BOAT RIDE PUKING INTO THE BUCKET.

Handling McCormack almost as a therapist would a patient, Lewin teases out other poignant recollections of that lost time: McCormack’s intimate “lakeside chats” with Kathie when they would “talk about everything, family dynamics, you know, her plans and her doctor, uh, dreams;” Kathie staying with James and his pregnant wife, Sharon, then sending a vase of roses to congratulate them on the birth of their daughter. Gradually, though, Lewin edges McCormack towards a darker place where memory sours and trauma and foreboding loom.

LEWIN: AND CAN YOU DESCRIBE… WAS THERE AN INCIDENT THAT OCCURRED AT ONE OF THESE HOLIDAY GATHERINGS?

MCCORMACK: YES.

LEWIN: CAN YOU PLEASE DESCRIBE, TO THE BEST OF YOUR MEMORY, WHAT HAPPENED?

MCCORMACK: THERE WAS A CHRISTMAS GATHERING, UM, AT MY MOM’S HOUSE. WE HAD OUR SIT-DOWN DINNER AND THEN THE SIT DOWN DINNER LED TO AN AFTER-DINNER COCKTAIL. UM, WE WERE IN MY MOM’S LIVING ROOM AND I WAS ON THIS END OF THE COUCH AND KATHIE WAS ON THIS END OF THE COUCH…

LEWIN: INDICATING OPPOSITE ENDS OF THE COUCH, FOR THE RECORD.

MCCORMACK: OPPOSITE ENDS OF THE COUCH… AS CLOSE AS I AM TO THIS GENTLEMEN. AND OPPOSITE ME WAS MY GRANDMA. SHE WAS GRANDMA [INAUDIBLE], SHE WAS GOING TO BE 90 THAT YEAR. AND BOB HAD, YOU KNOW, STARTED THE PROCESS OF GOING HOME, BUT HE HAD TO WARM UP THE DIESEL… IT WAS A 210 DIESEL… WHICH IS A DIESEL, YOU KNOW, YOU HAD PUT HALF A GALLON OF GASOLINE INTO THE DIESEL FUEL, JUST TO KEEP IT FROM FREEZING IN THE WINTER TIME. SO HE WENT OUT TO WARM UP THE CAR AND HE WAS KIND OF LIKE IMPATIENT. AND KATHIE WAS SITTING THERE WITH A GLASS OF RED WINE. I HAD A BOTTLE OF BEER… UNFORTUNATELY I PROBABLY WILL BE THINKING OF THIS TILL THE DAY I DIE, BUT THE NEXT THING I KNOW, BOB INSISTED THAT SHE GET UP. AND KATHIE WANTED TO CONTINUE THE CONVERSATION… BECAUSE HER GLASS WASN’T EMPTY… WITH MYSELF AND MY GRANDMA AND YOU KNOW, HE GOT IMPATIENT, HE WENT OUT AND THEN HE CAME BACK IN VERY QUICKLY, UM, WALKED OVER AS QUICKLY AS LIKE, YOU KNOW, A VERY QUICK STEP. GRABBED KATHIE BY THE TOP OF HER HEAD… LIKE THAT… AND YANKED HER AND SHE WENT WITH THE YANK.

***

THE WAY IT HAPPENED, IT WAS SO SPONTANEOUS AND UNEXPECTED. I MEAN, YOU REALLY GO INTO A TEMPORARY STATE OF SHOCK. YOU KNOW, IT’S LIKE A LIGHTNING BOLT. AND THE NEXT THING YOU KNOW, KATHIE GOT UP AND WAS GOING WITH BOB AND THEY WENT LITERALLY TO THE DOOR AND I’M STILL SITTING THERE, LIKE IN SHOCK, LITERAL SHOCK. AND KATHIE’S COAT WAS ON THE BENCH BY THE DOOR WHERE MOM USED TO KEEP THE… WHERE YOU STORE YOUR COATS WHEN YOU COME TO VISIT. SHE GRABBED THE COAT AND SHE TURNED AND SHE SAID SOMETHING TO THE EFFECT, “IT’S ALL RIGHT, JIM.” IN THAT MINUTE SHE WENT OUT THE DOOR AND THAT WAS THE END OF THAT.

Lewin asks McCormack about his sister Kathie’s hopes to become a doctor; his frustration with the NYPD’s investigation of his sister’s disappearance; and the seemingly unemotional reaction of her husband, Bob Durst. Lewin crafts a portrait of Jim McCormack as a shattered survivor, burdened with what he later termed “thirty-eight years of pain and suffering.”

McCormack is also not alone in his decade’s long ordeal. Late in his direct, Lewin asks McCormack about the effect of Kathie’s disappearance on their widowed mother. She died in 2016 at the age of 102, haunted by the mystery of Kathie’s fate.

LEWIN: DID SHE EVER GET OVER THE LOSS OF HER YOUNGEST DAUGHTER?

MCCORMACK: I DON’T BELIEVE SO. I THINK SHE, SHE KIND OF PUT IT ON A SHELF AT TIMES, BUT AT TIMES, I MEAN, WHEN I’D GO VISIT MY MOM, I STILL REMEMBER WHEN SHE WAS BECOMING MORE INFIRM, PHYSICALLY MORE INFIRM… HER MIND WAS STILL SHARP… I’D GO VISIT HER, SHE HAD A ROOM IN THE BACK WITH A TV, WHERE SHE WOULD SIT AND WATCH HER SHOWS. AND SHE, FIRST THING SHE’D HAVE WOULD BE THE STACK OF THE NEW YORK TIMES WEEKEND EDITION, WHICH WE GAVE TO HER AS A SUBSCRIPTION GIFT. AND SHE’D HAVE THE REAL ESTATE PAGES OPEN AND SHE FREQUENTLY… I SWEAR ON A BIBLE, WHICH I ALREADY HAVE… UM, YOU KNOW, THE SUBJECT WOULD COME UP AND SHE GOES, “OH, THE DURSTS, WATCH YOURSELF. THEY’RE POWERFUL PEOPLE.” THAT WAS THE WAY MY MOM’S MIND WAS RIGHT UP INTO WHAT WAS MAYBE HER HUNDREDTH BIRTHDAY.

*

The defense, led by Dick DeGuerin, shows comparatively little sympathy or respect for the missing Kathie Durst. At the start of his cross examination of McCormack, DeGuerin did not greet the witness or introduce himself. Instead, the Houston attorney launched directly into a line of questioning related to McCormack’s cooperation with NYPD detectives responsible for Kathie’s case. DeGuerin projects the image of a “Missing” flyer from 1982 seeking information about Kathie’s disappearance. Noting that the McCormack family had actively collaborated on the flyer with NYPD Detective Mike Struk, DeGuerin alleges that Struk was simultaneously “developing witnesses that had seen…”

Lewin objects before DeGuerin finishes his sentence, but DeGuerin’s intention is clear: without providing any evidence, he hopes to suggest that the NYPD bungled its investigation and tainted the McCormack family’s search for truth… unfairly leaving Robert Durst in the cross-hairs. Judge Mark E. Windham sustains the objection but Lewin presses his point, resulting in a heated exchange.

LEWIN: CAN THE JURY BE INSTRUCTED IMMEDIATELY, YOUR HONOR? THE COURT’S ALREADY RULED ON THIS. THAT’S NO ACCIDENT.

DEGUERIN: THAT’S NOT AN ACCIDENT.

WINDHAM: TIME OUT…

DEGUERIN: DOOR’S OPEN.

LEWIN: THE DOOR’S NOT OPEN! MAY WE APPROACH, YOUR HONOR? WE…

WINDHAM: WILL YOU JUST RELAX FOR A SECOND…

DEGUERIN: I’M BREATHING.

LEWIN: I’M TRYING.

WINDHAM: MORE SLOWLY, MR. DEGEURIN. CONCENTRATE ON THAT OUT-BREATH.

In his characteristically Zen manner, Windham then repeats his earlier instruction to the jury, that neither the attorneys’ remarks or questions are evidence.

DeGuerin’s sideways approach to cross-examination continues. He focuses on what he calls a “timeline” that he alleges McCormack devised using Kathie’s phone records. In what can only be considered a strategic mis-calculation, DeGuerin shows McCormack some ten pages of phone records, hoping to refresh his recollection.

Minutes pass in awkward silence as McCormack puzzles over the pages. Phone records from almost forty years ago? In the hands of the surviving sibling of a tragically-missing young woman? At the very least, it makes for bad optics. More minutes pass. Always conscious of the ticking clock, Windham finally intercedes, reminding McCormack that “After you’ve read it, just answer the question whether it refreshes your recollection without saying anything more.” McCormack seems genuinely confused by the document but not by DeGuerin’s intention: he hopes to suggest yet again that an incompetent NYPD investigation was further muddied by McCormack’s amateur sleuthing. Windham muses aloud about whether McCormack is the “right witness for these things.” (One journalist later speculates that DeGuerin confused Jim McCormack with another of Kathie’s siblings and was asking him questions that the defense intended for that other sibling. This would be the latest in a string of blunders by the Houston attorney. Defending Robert Durst: The Opening Statement By Karen Ann Coburn – March 23, 2020). In short order, the defense’s first two lines of questioning are thwarted — with DeGuerin’s bedside manner reading as tone-deaf and unnecessarily aggressive.

It’s at this point that DeGuerin begins to flail. He shuttles between The Jinx and McCormack’s relationship with the film’s directors; Kathie’s alleged cocaine abuse; and a ham-fisted examination of the “terrace incident” recounted by Anne Andersen-Doyle. None of this lands with any resonance — DeGuerin seems to be running down a laundry list, looking for something that might stick. What’s obvious is that in these first days of testimony, the defense does not have a thoughtful strategy for how to handle McCormack. As a last resort, DeGuerin asks McCormack about notes written to Kathie by her medical school instructors, missives suggesting that she was having academic and attendance difficulties in the months leading up to her disappearance.

To repeat Judge Windham’s concern: is McCormack the right witness for these things? What possible good could come of asking Kathie’s bereaved brother to overturn his memories of her? Instead of radically separating Kathie Durst from Susan Berman, the defense seems to have become tangled in the weeds of the People’s expansive theory of the case — positioning Kathie smack in the middle of the proceedings rather than rendering her irrelevant. It’s a mis-step, the consequences of which will be fascinating to follow.